Tapping into trouble: How India's new interception rules threaten privacy

India's recently proposed Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules, 2024, following the Telecommunications Act, 2023, has reignited the debate between national security and individual privacy. As citizens of the world's largest democracy, we must be critical of the rules and their actual implications.

To fully appreciate implications of the proposed 2024 Rules, it's important to understand the regulatory landscape preceding them. The Indian Telegraph (Amendment) Rules, 2007 had introduced key provisions for interception, including centralised authority, time limitations, procedural safeguards, emergency provisions, and service provider responsibilities. The Rules also included a penalty clause for telecom companies to ensure compliance and to protect privacy.

The 2007 Rules included a significant penalty clause for telecommunication companies in case of violations, placing a substantial burden on them to implement robust safeguards. Specifically, Rules 14 and 15, provided important safeguards:

“14. The service providers shall put in place adequate and effective internal checks to ensure that unauthorized interception of messages does not take place and extreme secrecy is maintained and utmost care and precaution is taken in the matter of interception of messages as it affects privacy of citizens and also that this matter is handled only by the designated nodal officers of the company.

15. The service providers are responsible for actions of their employees also. In case of established violation of licence conditions pertaining to maintenance of secrecy and confidentiality of information and unauthorized interception of communication, action shall be taken against the service providers as per Sections 20, 20A, 23 and 24 of the said Act, and this shall include not only fine but also suspension or revocation of their licenses.”

However, it must be noted that despite these provisions, the 2007 Rules had their limitations. Critics argued that the oversight mechanisms were inadequate and that the broad grounds for interception left room for misuse.

The Telecommunications Act, 2023, and the subsequent 2024 Rules for interception, represent a significant shift in India's approach to digital surveillance. While ostensibly aimed at modernising the framework, these new rules raise serious concerns demanding rigorous scrutiny.

Firstly, the expansive definition of "telecommunication" in the Act potentially covers all forms of digital communication, giving the government extensive reach into citizens' private interactions. Moreover, the Rules grant the government enhanced emergency powers, including the ability to take temporary possession of telecommunication services and prioritise certain communications during crises. While potentially useful for emergency response, these powers could be misused to control information flow and stifle dissent.

Alarmingly, the grounds for interception under the new Rules remain overly broad, including vague terms like "friendly relations with foreign States" and "public order". Such ambiguous language leaves room for abuse, potentially allowing surveillance of political opponents, journalists, activists and marginalised communities under the guise of national security.

Furthermore, the rules lack judicial oversight, as there is no requirement for prior judicial approval before intercepting communications. This removes a crucial layer of checks and balances, greatly increasing the risk of arbitrary and politically motivated surveillance. The concentration of power with the executive, without adequate safeguards, is a recipe for erosion of civil liberties.

Chilling effects on privacy and free speech

One of the most disturbing implications of the proposed 2024 Rules is the chilling effect they could have on privacy and free speech. The overly broad grounds for interception are likely to fuel widespread self-censorship, as individuals grow increasingly fearful of expressing dissent or discussing sensitive topics, even in private communications. Whistleblowers, journalists, activists and even ordinary citizens would think twice before sharing critical information or exposing wrongdoing, slowly suffocating the free flow of ideas that is the lifeblood of a vibrant democracy.

Moreover, the expansive reach of the Rules into digital communications deals a blow to privacy rights, which the Supreme Court has recognised as an integral fundamental right. The spectre of pervasive surveillance could turn India into a country where citizens are stripped of their autonomy and subjected to constant monitoring.

Lack of judicial oversight further exacerbates these concerns. Without prior approval from a neutral arbiter, the executive branch is essentially given a blank check for surveillance, opening the door to politically motivated snooping and suppression of dissent.

Threats to journalistic freedom and democratic accountability

For journalists and media organizations, the proposed Rules pose an existential threat to their ability to report on matters of public interest without fear of retribution. Confidential sources and whistleblowers may no longer feel secure in coming forward, knowing their communications could be intercepted.

Moreover, the threat of surveillance could be weaponised to intimidate and silence critical media outlets. The chilling effect on press freedom would deal a devastating blow to democratic accountability, as those in power could act with impunity, shielded from journalistic scrutiny.

Removal of crucial corporate safeguards

Equally concerning is the omission of key safeguards from the 2007 Rules that held telecommunication companies accountable for unauthorised surveillance and data breaches. The 2024 Rules no longer include explicit penalties for corporate non-compliance, effectively letting telcos off the hook and leaving citizens' data vulnerable.

This shift creates perverse incentives for companies to prioritise money over privacy. Without possibility of serious consequences, there is little to stop telecom providers from cutting corners on data security or even actively collaborating with government surveillance. The removal of corporate liability leaves citizens at the mercy of opaque and unaccountable private entities that have time and again shown their willingness to monetise personal data.

The simultaneous expansion of state surveillance powers and dilution of corporate safeguards creates a perfect storm that leaves citizens more exposed than ever.

The illusion of security

Proponents of expanded surveillance powers often invoke national security as a trump card, arguing that individual rights must take a backseat in the face of existential threats. But this is a false dichotomy that ignores the long-term corrosive effects of unchecked state power. History is littered with examples of well-intentioned security measures morphing into tools of oppression, from the Patriot Act in the USA to China's pervasive surveillance measures.

Real security means protecting not just physical safety, but also the values and freedoms that define us as a nation. It means having robust checks and balances, meaningful oversight, and a fierce commitment to individual autonomy. Trampling on civil liberties in the name of order ultimately undermines the very security it purports to protect.

The need for democratic oversight

If India is to embrace the digital age without losing its democratic soul, it is imperative that any surveillance framework be subject to rigorous checks and balances. We need a system of multi-layered oversight, with each branch acting as a check on the other.

At a minimum, any communication interception should require prior judicial approval at least in a preliminary manner, with a clear and compelling case made for its necessity. The judiciary, as an independent arbiter, is best placed to balance individual rights with legitimate security concerns, ensuring that surveillance powers are not abused.

Moreover, surveillance operations must be subject to strict parliamentary oversight, with regular reporting and disclosure requirements to ensure public accountability. Transparency to the greatest extent possible without compromising legitimate intelligence gathering, should be the default, not the exception.

As India stands at the crossroads of the digital age, we face a choice that will define us as a nation for generations to come. Will we succumb to the siren song of unchecked power, sacrificing our hard-won freedoms at the altar of an illusory sense of security? Or will we chart a different path, one that upholds the values of privacy, liberty and democratic accountability?

The proposed 2024 Rules, in their current form, represent a dangerous lurch towards potential authoritarianism. They are possibly a betrayal of the spirit, if not the letter, of India's Constitution, and a grave threat to the very idea of India as a pluralistic, democratic republic. If allowed to stand unchallenged, they risk setting us on a path to a dystopian future where the state is all-seeing, and individual autonomy is reduced to a memory.

But this dark future is not inevitable. As citizens, we have the power and the responsibility to shape the laws that govern us. We must demand that any surveillance framework uphold the highest standards of necessity, proportionality and oversight. We must insist that ordinary Indians are heard loud and clear in the halls of power.

The choice before us is stark but clear. We can sleepwalk into a surveillance state, surrendering our freedoms for the illusion of security. Or we can stand up for our rights, demanding accountability, transparency and respect for civil liberties from those who govern in our name. The proposed 2024 Rules must not be the final word, but rather the start of a national conversation about the kind of digital future we want for ourselves and for generations to come.

As we navigate this crucial moment in our history, let us draw strength from the words of Chief Justice of India DY Chandrachud, who wrote in the Puttaswamy judgment:

“Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life.”

Gaurav Arora, Dhruv Wadhwa and Ujjwal Malhotra are Partners at AWM Legal.